Intellectual Property – Injunctions
November 8, 2013
Publication| Intellectual Property
Judge Robinson Denies Temporary Injunction but Grants Stay Pending Appeal
In Senju Pharmaceutical Co., Ltd., et al. v. Lupin Limited, et al., C.A. No. 11-271-SLR (cons.) (D. Del. Aug. 26, 2013), Judge Robinson denied plaintiffs’ motion for a temporary injunction pending appeal, but granted a stay until the time for appeal had passed or, if plaintiffs filed a timely appeal and a motion for injunction pending appeal with the Federal Circuit, until such time as the Federal Circuit addressed the issue of whether the stay would be maintained pending its decision on the motion for injunctive relief. The Court had twice previously found the patent at issue invalid. The stay prohibited the launch of a generic version of the product.
Judge Stark Denies Temporary Injunction
In Depuy Synthes Products, LLC v. Globus Medical, Inc., C.A. No. 11-652-LPS (D. Del. Aug. 22, 2013), Judge Stark denied Depuy Synthes Products, LLC’s (“Synthes”) motion for a preliminary injunction to enjoin Globus Medical, Inc. (“Globus”) from exporting its inventory of accused products for sale overseas. The Court concluded that Synthes failed to establish irreparable harm. At trial and in the briefing on Synthes’s motion for a preliminary injunction, Globus presented evidence that consumers used the Globus products for reasons other than the patented features, and even if some of the inventory was purchased based on the patented features, “lost sales standing alone are insufficient to prove irreparable harm.” A movant seeking a preliminary injunction must provide “a clear showing” of a risk of irreparable harm—more than a “likely” risk. Finally, based on the jury verdict of validity of the patents and infringement of Globus, Globus would be paying a reasonable royalty of $16 million for infringing products already sold, and the Court found no basis to conclude that Globus would be unable to pay additional reasonable royalty.